Six Steps to Reduce Your Legal Risks in Workplace Harassment Cases

October 29, 2013Articles
As seen in the SES Legal Education Blog.

The need to enforce nondiscrimination policies and conduct thorough investigations into claims of workplace harassment is not new advice, but it is advice that bears repeating. Allegations of harassment that go uninvestigated, or are investigated improperly, can cost your company dearly. Here are six steps your company should take to reduce its legal risks:1

1. Know What Constitutes Unlawful Harassment. This seems basic but many employers fail to take appropriate action simply because they do not recognize possible “unlawful harassment.” Indeed, in EEOC v. Boh Brothers Construction Co., LLC, a recent case where a company was hit with a $450,00 jury verdict for its failure to properly handle a male employee’s complaint of sexual harassment by his male supervisor, the supervisor testified that he did not know his use of sex-based epithets, exposure of his genitals, and simulated humping of the complainant from behind either violated a company policy or constituted sexual harassment. Defining unlawful sexual harassment in company policies and training employees on those policies is vitally important.

2. Develop and Disseminate an Effective Unlawful Harassment Policy. An effective unlawful harassment policy is one that focuses on prevention. An effective policy defines unlawful harassment and encourages targets of unlawful harassment to report the behavior by guaranteeing them protection against retaliation. In Boh Brothers, the court noted that the company’s nondiscrimination policy did not offer any specific guidance on sexual harassment, nor did it explain to employees how they went about reporting sexual harassment. Moreover, the company failed to adequately disseminate its anti-harassment policy. The lesson here is simple: review your company’s policies to ensure they clearly explain to employees what to do if they feel they are the target of workplace harassment and make sure your employees are provided with a copy of the policy.

3. Make Enforcement of the Policy a Responsibility of Upper Management. Lower level managers are often reluctant to report an unlawful harassment claim because they fear it would reflect poorly on their management skills. As a result, they delay reporting the situation to upper management until the situation has become much worse. Complaints should be reported to Human Resources or another member of the employer’s upper management and employers must make sure to train these designated people how to investigate, document, and resolve harassment complaints once they are filed. In Boh Brothers, the company did not train supervisors on how to investigate complaints; instead it simply advised supervisors to call in-house counsel if they had questions about investigating a complaint of harassment.

4. Learn to Recognize An Unlawful Harassment “Situation.” Investigate all allegations or suspicions of improper conduct, regardless of whether the target of the conduct wants them to be investigated, or whether a formal complaint has been made. It is common in unlawful harassment lawsuits for the plaintiff to claim that he or she did not report the incident or want it investigated because of fear of retaliation. And, as Boh Brothers demonstrates, claims of sexual harassment can just as easily arise in situations involving members of the same sex as it can in cases involving members of the opposite sex.

5. Conduct a Prompt and Adequate Investigation of Every Situation. Ideally, an investigation should begin within 24 hours. The employer should select unbiased investigators, who then conduct separate interviews of the complainant, the alleged offender, and all witnesses. It is a mistake not to investigate situations because they do not seem “serious” enough. Furthermore, be thorough: get witness statements, take notes, and gather documentation. A cursory investigation is as bad as no investigation at all.

6. Take Timely and Appropriate Remedial Action. If an employer’s investigation uncovers harassment of any kind, the employer has a legal obligation to take prompt and effective corrective action. Depending on any number of factors, including the seriousness of the violation, whether the offender is a management employee, and whether the offender has engaged in similar conduct in the past, corrective action could include disciplining the offender through a write-up or requiring him or her to undergo sexual harassment training. The offender should be terminated if the facts and circumstances warrant it, such as when the conduct is criminal in nature or is part of a recurring pattern. Consideration also should be given to what the complainant wants. In no event should the complainant be penalized, which is exactly what happened in Boh Brothers when the company sent the complainant home for three days without pay after he complained of harassment.

On the other hand, in Summa v. Hofstra University, the University avoided liability for sexual harassment by promptly investigating a complaint of harassment made by a student football team manager, dismissing the harasser (who happened to be a member of the football team), and conducting harassment prevention training for members of the Athletic Department.

No company can completely avoid claims of sexual harassment, but by implementing these six steps, your company can minimize its legal risks in cases of workplace harassment.

(1) I will cover these six steps in more detail, as well as various other issues related to workplace harassment, during the Sterling Education Services Fundamentals of Employment Law Seminar in Cincinnati on December 4, 2013.